by Christopher Graham and Joseph Kelly

Samson v. Ghadially Case No. 14-12-00522-CV (Tx. Ct. of Appeals Aug. 20, 2013)

Attorney was sued by client after declining to file a medical malpractice suit against former client’s surgeon.

In November 2006, the surgeon inserted screws into client during a bone graft surgery without his consent. Client met with attorney in 2008 regarding a potential medical malpractice suit. In August 2008, attorney sent client a letter stating that he couldn’t locate an expert to file an expert medical report which is a required for medical malpractice cases in Texas. The letter also reminded client of the November 2008 statute of limitations deadline for such a suit.

Client filed the medical malpractice suit pro se, but that suit was dismissed because of the lack of an expert medical report.

In May 2010, client filed this suit alleging fraud, negligence, breach of fiduciary duty, and breach of contract. Client’s complaint essentially argues that attorney committed malpractice by agreeing to pursue client’s medical malpractice claims and then changing his mind two months before the statute of limitations expired.

Attorney filed a motion for summary judgment arguing, in pertinent part, that client couldn’t establish causation. The court agreed stating a legal malpractice plaintiff must satisfy the “suit within a suit” requirement – meaning that plaintiff must prove he would’ve won his medical malpractice case if not for the attorney’s malpractice. The court stated “[e]xpert testimony is required whenever the connection between the alleged acts of malpractice and the harm suffered by the client is beyond a jury’s common understanding.”

Here, client failed to prove — via expert testimony or otherwise — that he would’ve prevailed in his medical malpractice case if attorney hadn’t delayed in informing client that an expert couldn’t be found.

Tags: Texas, legal malpractice, causation, expert testimony